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Nina Bernstein

In the chapter, a reporter for the New York Times who has written extensively about immigration detention policies in various countries assesses the limits that investigative journalism faces in spurring detention reforms. She argues that while journalism occupies a privileged place in a democracy because it helps hold government to account, in practice it operates at a far messier intersection between the politics of reform and the contingencies and conventions of even the most robust news operation. The author focuses her analysis on the relationship between investigative journalism and the early efforts of the Barack Obama administration to overhaul immigration detention by creating “a truly civil detention system.” Today, the US detention system is larger than ever, abuses remain endemic, the government has massively expanded its capacity to lock up mothers and children in “family residential centers,” and the new administration is threatening to ramp up already record numbers of deportations.

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Mike Berry

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Regine Paul and Marc Mölders

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Minority rights up through the Marshall Court, 1789–1835

Two Centuries of Judicial Review on Trial

Leslie F. Goldstein

Summarizes the racially discriminatory policies and entrenchments of black slavery adopted by elected branches, both state and federal, from 1789 to Civil War. Analyzes all slave cases that Supreme Court handled from 1789–1835, and major Indian cases of that era. Concludes that the Court was less anti-slavery than was the (indirectly) electorally accountable Attorney General of the U.S. Also demonstrates that Marshall Court decisions became less pro-slavery beginning in 1817, the year the Colonization Society was founded. Supreme Court justices acting on circuit declared unconstitutional the South Carolina Negro Seamen law that jailed free blacks while they were in port, and refused to apply the Virginia law that did the same. Describes Indian Removal Policy, including Trail of Tears. Concludes that Marshall Court stood up for the rights of Native Americans, but the elected branches did more than the Court to restrict and punish slave traders. KEYWORDS: Johnson and Graham’s Lessee v. McIntosh (1823) Cherokee Cases Indian Removal slave trade legislative racial discrimination in U.S. Negro Seamen Laws

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Alfons Bora and Michael Huber

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Edited by Regine Paul, Marc Mölders, Alfons Bora, Michael Huber and Peter Münte

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Alfons Bora

This chapter introduces in depth the scientific models and theories which have captured the idea of “shaping society” with their conceptual language. These scientific models are analysed from the perspective of the sociology of knowledge. The underlying intuition is that a deeper understanding of the respective semantics will also improve our comprehension of the social structures in the field. The semantics of governance captures a widespread contemporary description of the exercise of power and its legitimation. Governance is understood as a form of statehood mainly characterized by negotiation and co-operation, in contrast to hierarchical steering, rule-making, enforcement and sanctioning. To a certain extent, governance has turned the scales against the more traditional concepts of law and regulation, which bear some connotations of the nineteenth and twentieth century nation-state and have allegedly become rather outdated models of societal organization. Contrary to this widespread intuition within the governance debate, the chapter demonstrates that the perspective of law and regulation is still fruitful for conceptualizing the relation between the different fields and subsystems of modern society. While governance indeed expanded the analytical realm towards new instruments of control and the new actors involved in decision-making, it did so all the while preserving and even strengthening the idea of controlling and powerfully shaping societal conditions. The chapter therefore suggests recollecting the functional nucleus of “governance” within the terminology of “regulation”. Such a nucleus places particular emphasis on the “ruling part” of governance semantics which (a) remains deeply concerned with questions of exercising influence and (b) feeds to a large extent on legal sources.

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An uphill struggle

A Fitness Landscape Model Approach

Lasse Gerrits and Peter Marks

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Melissa K. Scanlan

The current global economic system, which is fueled by externalizing environmental costs, growing exponentially, consuming more, and a widening wealth gap between rich and poor, is misaligned to meet the climate imperative to rapidly reduce greenhouse gases (GHGs). Amidst this system breakdown as we reach the end of the Industrial Age, the new economy movement has emerged to provide an alternative approach where ecological balance, wealth equity, and vibrant democracy are central to economic activity. Laws are the fundamental infrastructure that undergirds our economic and political system. Environmental law is typically conceived as a set of rules that establish pollutant limits for specific waterbodies, protect an identified species, or direct an industry to use a required technology. Although necessary, these types of law do not address the fundamentals of our political economy, and the most dramatic failure of environmental law is seen in increasing amounts of GHGs and global climate disruption. In order to develop a new economic system that is aligned with a climate and economic justice imperative, we need laws that will facilitate the new system and discourage the old. This chapter discusses systems thinking and systems change, highlighting leverage points to achieve change. It gives an overview of the new economy movement that has emerged to provide a new narrative, and using a systems lens, identifies areas where the law needs to evolve to facilitate building a more sustainable, equitable, and democratic future.

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Edited by Melissa K. Scanlan